This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader coverage and a wider audience. In addition to information about trials and trial practice, you'll find notes about appellate practice, the courts, access to justice, and related topics.

Tuesday, November 29, 2005

[RESEARCH] I wondered: how many trials are taking place in Washington Courts? Of those, how many take place here in King County? Are there more or fewer than a few years ago?

So I spent a little time looking at the caseload reports from the Washington Courts. In these, you can find all sorts of data about filings, dispositions, nature of cases, and more. Here are just a few statistics:

So just a small slice of the cases filed actually go to trial. (Of course, you need to know about trial practice even if your case doesn't go to trial. Settlement negotiations and motions practice are shaped by how you think the case would play out if tried.)

Some of the content on the section's website is limited to members. One freebie is TortSource, a newsletter that

highlights topical tort and insurance law issues and includes technology advice, practice tips and updates on continuing legal education programming. "When I Was A Young Lawyer," "Legislative Update," "In Motion" and a host of other unique columns round out each issue of this quarterly newsletter.

The summer 2005 issue had two pieces about appeals -- how to preserve issues for appeal and, once you get an appeal, oral argument advice for trial attorneys. Fall 2005 has a piece called "Let the Jury Draw the Conclusion":

The juror who comes to an independent conclusion will hold on to that deduction much more tenaciously than will a juror who is told what to think and decides to think that way only because that is what the lawyer said to do. * * * [Jurors who reach their own conclusions will] will listen more closely for the facts, analogies, and argument that support the conclusion and allow them to defend it in the jury room.

The fall issue also has several pieces about developments in employment law.

Monday, November 21, 2005

The Florida Supreme Court has sanctioned two attorneys for using a pit bull in their advertising (and in their phone number, 1-800-PIT-BULL) because the ads "demean all lawyers and thereby harm both the legal profession and the public's trust and confidence in our system of justice." Florida Bar v. Chandler.

Carolyn Elefant has a post on MyShingle (her blog for solo practitioners) (that's where I got the link to the case -- thanks!). My Shingle: An Ethics Decision for the Dogs She includes ads from a firm that uses a Golden Retriever and an elephant and wristwatch with Georgetown's cartoon bulldog. Demeaning? She concludes "What a silly decision." There are several interesting comments, at least one defending the court's position.

Before going to MyShingle, I'd looked for a news story about the case. (I saw an AP snippet over the weekend.) One of the first things I found was:

Ed Gillespie was called ''President Bush's pit bull'' during the 2004 presidential campaign, when as chairman of the Republican National Committee he seemed to live on cable television trading snarls with Terry McAuliffe, his attack dog of a counterpart at the Democratic National Committee.

New York Times, July 6, 2005. (If you Google Gillespie pit bull, you'll see a bunch of examples.) It doesn't seem that he minds this -- or that Republicans as a whole feel demeaned because the chairman of the Republican Party has that nickname. It's ironic, because during the heat of the presidential campaign, it seemed that "trial lawyer" was used as an insult, but "pit bull" was a term of respect.

PS As a UW Husky, I considered finding dog images to match Elefant's Georgetown bulldog, but time is short. Go Dawgs.

PPS (Nov. 27) David Giacalone at f/k/a ethicalEsq offers a more current example of "pit bull" as a compliment for a Republican: President Bush's description of Harriet Miers as "a pit bull in size 6 shoes."

Wednesday, November 16, 2005

[POLICY] Are some cases too complex factually for a jury of ordinary citizens to sift through? Or is the American jury the best factfinder for all sorts of cases? Would we get "better" results if we had professional factfinders for patent cases? How about medical malpractice cases?

[CASE] Twenty years after a 13-year-old girl was found raped and murdered, the police tried to match up DNA evidence with a suspect (the man who had been the boyfriend of the girl's older sister). They sent a letter to the defendant (he was then living in New Jersey), on the letterhead of a fictitious law firm, inviting him to join a fictitious class action. When he replied, they obtained enough saliva from the envelope he'd licked to match the DNA sample.

The Washington State Bar Association has been asked to write an amicus brief in the defendant's appeal to the Washington State Supreme Court, State v. Athan. The amicus committee recommends that "the appropriate issue to be addressed by the WSBA is the detrimental effect on the bar and the administration of justice if police are allowed to falsely pose as lawyers." The Board of Governors invites comments, and will decide at its next meeting, December 9-10. For more information see Notice of Request for WSBA to File Amicus Curiae Brief.

Monday, November 14, 2005

[NEWS] Since Texas has enacted tort reform measures, some personal injury firms are moving into intellectual property litigation. Here's a profile of a firm in Marshall, TX, home of the Eastern District of Texas, a court with a reputation for being friendly toward patent plaintiffs (in both bench and jury trials). law.com - Making the Leap From PI to IP, IP Law & Business, Nov. 14, 2005.

Sunday, November 13, 2005

[CASE] A recent case raises several issues about the trial of a juvenile as an adult. Here I'd like to highlight the final issue discussed in the case: whether it was error for the trial court to exclude an email message from the victim.

The defendant (Posey) and the alleged victim (H.A.H.) were high school classmates. Prior to or around the time the met Posey, H.A.H. wrote an email message to someone else describing some rape fantasies and saying she would like a boyfriend to choke her and beat her. The police made copies of emails from the H.A.H.'s computer. The defense wanted to introduce this one to show that H.A.H. consented to the violence and intercourse with Posey and to rebut her claim that she was afraid of him.

The trial court found that the email was highly prejudicial. The court noted that "[a]nybody who's had an e-mail correspondence with anybody knows it's easy to say things during that correspondence that you wouldn't necessarily say to their face."

After discussing limited situations when a victim's past sexual history can be admitted despite the rape shield statute (RCW 9A.44.020), Division 3 found that the trial court did not abuse its discretion in excluding the email.Find Result - 2005 WL 2982134

Cramer contends that his trial counsel was constitutionally ineffective for several reasons. Primarily, he points to counsel's decision to cross-examine R.C. in a highly confrontational manner, which, by Cramer's account, could serve only to engender hate for Cramer in the jurors' minds. Cramer also maintains that his counsel was ineffective because he elicited unfavorable testimony; was repeatedly rebuked by the trial court for using improper impeachment procedures; failed to object to improper closing argument by the State; and acted unprofessionally in the courtroom.

I was particularly interested in the first issue -- the aggressive cross-examination of the child victim. The cross seemed to be so hard on the girl that the trial judge ordered the lawyer to do his questioning seated:

[T]his is my problem, sir, and this is why I told you to sit down, is that this witness is breaking down on the stand. I do not believe that badgering this witness is going to succeed for either side. If anything, if you look at your jury, they're tuning out this part of the testimony because they can't stand to watch this child go through that.

Not only did the questioning appear to be hard on the girl, but the defendant's reaction to it also made an impression on the judge. During sentencing, he told the defendant:

This child was on the stand for three hours, approximately. You know what really affected me about that testimony? Not so much what she said, but how you didn't react to it. You had absolutely zero expression while your attorney scathed her on the stand, skewered her six ways to Sunday.

And I'm thinking of those moments where he goes, [']You see your transcript. At this time and this place you said this?['] Trying to trip up this little girl. Okay. He did his job. But she broke down as a result of it. Okay.

But you didn't react, sir. And that really bothered me that a father, a biological father wouldn't react to that, seeing his own child put through that kind of torture.

On the ineffective assistance of counsel claims, the court concluded:

This court will rarely sustain an ineffective assistance claim where the 'entire record' on appeal 'reflects a vigorous and competent defense.' * * * Cramer received such a defense. This is reflected not only in the trial transcript, but in a record that contains detailed motions for discovery, continuance, a bill of particulars, dismissal, an arrest of judgment, and a new trial. Defense counsel's tactical decisions in representing Cramer did not constitute ineffective assistance. Were we to hold otherwise, such tactical decisions would be the norm with defense counsel intent on creating error for redress on appeal.

[NEWS] On Thursday there was a scuffle between the families of a murder victim and his killer, sparked by a remark that the sentence was unfairly long, since the victim was 69 years old and "wasn't going to live forever." Families fight at murder sentencing in Tacoma, Seattle PI, Nov. 10, 2005.